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net.wars: Digital Rights Manifesto

It's strange, but it turns out that Sony, with its damn-fool rootkit attempt at digital rights management, might actually turn out to have done the world a huge favour. Until that story broke in November, DRM was such an arcane subject that only weirdos like us wanted to talk about it much. After all, anyone who was against DRM was a thief and a pirate by nature, surely.

Then Sony did its evil deed, and the next thing you know, DRM is in the headlines and all of a sudden everyone cares. Even the National Consumer Council, which this week called for legislation to regulate DRM use in testimony given to the All Party Internet Group, which has just finished accepting comments as part of its consultation on DRM. It's wonderful.

Then, this past Tuesday I was asked to talk about "Should ideas be free?" at the Café Scientifique in Brighton. Imagine: 60 people, or thereabouts, showing up to sit around and argue about intellectual property law and what it should be. I once met a lawyer who had studied intellectual property law something like 20 years ago; the entire group of people interested in it in his graduating class could have fitted in a broom cupboard.

So what with one thing and another, I've been trying to come up with a list of what ought to be the principles of "Responsible DRM". Herewith.

DRM should not violate the user's computer. This ought, you would think, to go without saying, but the Sony rootkit fiasco has taught us that apparently it doesn't. By "violate", I mean the software should not: hide its presence, send back information about either the user or the computer without permission (and what gets sent should be fully auditable by the user), or do other things that, if Sony were a teenaged hacker dressed in black working out of a back bedroom would send it to jail. A company whose DRM breaks the law ought to be fined and treated exactly like a wanton environmental polluter.

DRM should respect the public domain. That means it should automatically expire, leaving the content freely accessible, on the date when the work enters the public domain. While this is a long way off in the case of a movie released in 2006, it is not a long way off for, say, a novel written in 1923 whose author died in 1937 (life plus 70 years, so that work reaches the public domain in 2007) or a 50-year-old recording (at least in the EU).

Public domain should be acknowledged. When a work is in the public domain, companies wishing to claim copyright in the design, formatting, typography, layout, and graphics they include in something like an ebook should be required to make it plain in their clickwrap licences that the public domain work is not included in the copyright, and should be required to design the product so that the raw text may be copied or circulated freely. The same goes for public domain movies and songs released on DVD/CD.

Digital doesn't give more rights. DRM should not be allowed to apply more restrictions to a work than that same work would have in the analogue world. This actually would be a difficult one to put into force. For example, it's straightforward to say it means that if you can loan a book to a friend you should be able to loan an e-book to a friend, and your TV shouldn't be spying on you to find out how many friends are watching that DVD in your living room. But it's less straightforward to explain with respect to backups, say - an issue which no one had with dead tree libraries. Well, until the Xerox copying law, I guess.

Circumventing DRM should not be a crime (as of course it is under the US's Digital Millennium Copyright Act) in and of itself. For one thing, because taking things apart to understand how they work is an important part of learning. For another, because if there is harm to rightsholders and artists, removing DRM is not the cause, merely a contributing element. Finally, because making removing DRM a crime puts too much control in the hands of a relatively small set of companies; copyright law has always been about balancing the public interest with the need to create incentives for artists and creators, and DMCA-like laws tip the balance too far. What matters is what is done with the copies once they're opened. While I am tolerant of file-sharers, the young Chinese woman who came down my street the other day wearing a backpack and offering "cheap DVDs" for sale was unquestionably committing a crime; so are the fraudsters that swamp eBay with so many counterfeit DVDs that I won't buy there any more.)

Disabled users have extra rights. Rightsholders who do not incorporate features to allow disabled access should be required to allow third parties to do so.

Technology should enable access, not hinder it. When a new format is adopted and new work begins being released on it, the technical specifications for how to build a reader (and a copy of the player) should be filed in the copyright libraries.